Unprecedented: The Constitutional Challenge to Obamacare

"When this case first started in 2009 it was a laugher," explains Josh Blackman, assistant professor at the South Texas College of Law and author of the new book Unprecedented: The Constitutional Challenge to Obamacare, which tells the inside story of the legal challenge surrounding President Obama's signature law. "Fast forward two-and-a-half years and this argument gained steam and gained traction and started to be accepted by judges and some scholars. And then we go to the Supreme Court where five justices say that Congress can't regulate inactivity and seven justices say that the federal government can't coerce states into accepting Medicaid money. Holy cow!"

In the end, of course, the court upheld Obamacare's individual mandate by declaring it a tax, which critics believe effectively rewrote the legislation. Blackman believes Chief Justice John Roberts' majority opinion wrongly "upheld a law that Congress never wrote," but he sees a clear indication that the "federalism revolution" of the Rehnquist court is still ongoing. "You now have the strong constitutional undercurrent in the people [via the Tea Party talking] about what the federal government can do, and you have the Supreme Court on record saying that there are certain things the government can and can't do. This, actually, is not so bad for libertarians. This might be a good recognition that the Constitution has very strong libertarian principles embedded into it."

Blackman sat down with Reason's Damon Root to discuss Unprecedented, the case against Obamacare, and how he sees the remaining legal challenges against the health care law faring in court.

Produced by Meredith Bragg. Cameras by Todd Krainin and Bragg.

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  • Warrren||

    I didn't realize Jonah Hill was a polymath.

  • Killazontherun||

    No, he's just eaten a few. When he belches, sometimes he sounds really smart.

  • Anonymous Coward||

    Even though the statute says "penalty", we're going to pretend it says "tax."

    If I had 365 rotten eggs, I would hit John Roberts with one every day for a year.

  • Warrren||

    There's no way you could maintain a 100% hit rate.

  • Anonymous Coward||

    Never underestimate the power of contempt paired with a decent curveball.

  • Live Free or Diet||

    A potato canon could be helpful.

  • Carolynp||

    I think over time you could definitely make progress. It's worth pursuing.

  • Sevo||

    Warrren|10.2.13 @ 3:43PM|#
    "There's no way you could maintain a 100% hit rate."
    If he misses, I guarantee there'll be more ammo right there!

  • Bill||

    The good thing about a rotten egg is you don't need a direct hit.

  • jdfinct||

    Yeah what you are saying makes me wonder why the court even allowed government lawyers to argue it was a tax when the people involved in passing it(shoving it down our throats really)did everything to avoid calling it a tax when they wrote/passed it. How can they pass it as one thing then argue something different before the court and get away with that?
    Not to mention the whole tax raising bills need to originate in the house and is it okay that a tax is being used to penalize behavior they do not like. i.e. not buying health insurance.
    Imagine if the right passed a law requiring everyone buy a firearm and take training or be taxed.

  • VG Zaytsev||

    Harry Reid:

    "Why would we want to pass emergency legislation to help kids with cancer?"


    Extremist Harry Reid cares more about keeping government shut down than helping kids with cancer.

  • Bardas Phocas||

    He's just trying to get on my good side.

  • gaijin||

    from the video, Harry Reid Constitutional Scholar:

    "What right do they (House) have to pick and choose what part of Government gets funded?"

  • Hyperion||

    I think we should have a lotto that if you win, you get to decide for one month, what parts of government gets funded.

    If I win, I promise more delicious proglodyte tears than ever before imaginiable.

  • mplspolitics||

    The fact that appropriation bills must originate in the House due to the Origination Clause. How about that's fucking why, Harry Reid.

  • OneOut||

    Because FY.

    THAT'S why !

  • DarrenM||

    My first thought was that he was being sarcastic. However, I remembered how sarcasm-challenged many liberals tend to be. After watching the video, I think what he was going for was 'why fund the NIH to help one child when so many others also need help', which he was using to justify not doing anything. He definitely put his foot down his own throat.

  • grey||

    It's sort of funny to see the Blue Team argument against Red Team turned on them. I'm not forgetting that the logic is fallacious; but, but, but the children. First I must forget all the harm government does and then I have focus omy attention on some particular good it might do, I can't do it. Okay, what about the children left without daddy because you kidnapped him for smoking a plant? That kid might have cancer, Blue Team and Red Team: give him his daddy back.

  • grey||

    Ooops, wrong blog, had both windows open for the Harry Reid story....move along, nothing to see here but stupid.

  • Fist of Etiquette||

    Well, it's a precedent now.

  • Hyperion||

    It's just penaltaxes all the way down.

  • Hyperion||

    Apparently, Scary Greed and the Dems are ready to negotiate with the orange one and the turtle head. If the GOP gives them everything they want, right now, they said they might agree to negotiate with the GOP, sometime in the future, you know, like if the mood hits them, on tax reform.

    Sounds like a deal the GOP will take, if their past record tells us anything.

  • bersc52||

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  • SusanM||

    Good! Now you can pay your Obamacare deductible!

  • loellaviles||

    my friend's sister makes =$­8­0= an hour on the laptop. She has been fired from work for seven months but last month her pay check was =$­1­2­7­4­1= just working on the laptop for a few hours. here are the findings...


  • wooffjordy||

    Start working at home with Google! It's by-far the best job I've had. Last Wednesday I got a brand new BMW since getting a check for $6474 this - 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to Economy tab for more detail ...

    =============== http://WWW.MAX34.COM

  • Tusense96761||

    According to Glen Beck there may have been some dirty play from Obama to Judge Roberts on Obamacare, there are some questions about Roberts adopting two children ten years ago when they were infants from ?Ireland by way of South America, Now it is illegal for any children to be adopted in
    Ireland to the U.S. , so is impossible for fear of losing his children because those adoptions may have a problem for the judge that he came up with a way to keep Obama from outing him. This would be a sad day if this is true. This has hurt our entire country in so many ways, Obamacare has and it continues to. A judge of this statue should have resigned before hurting our country like this and should never have put the country in this position because he was compromised, shame on him, every day shame on him. Maybe that is why Obama is usurping our White House because of this same blackmail, we all know Obama is a fraud, forger, identity thief and and ineligibility president. His father was not a citizen and ?Obama May be a duel citizen or not a citizen at all.

  • Zoobs||

    Since all spending bills must originate in the House, and given that Obamacare originated in the Senate, the law is invalid. It could be argued that the Senate indeed originated a spending bill (even though they declared it was not a tax) in the first place since it was intended to shrink future deficits by raising revenue. The fact that the law was later labeled a tax by the Supreme Court seals the deal.

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